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made, notwithstanding any errors in the proceedings, and takes away the writ of error upon any judgment before rendered.
This is substantially a new confiscation. If the judgments before rendered were from error invalid, the confiscations were nullities—to take away the writ of error which was the mode of annulling them, was equivalent to making new confiscations. This act was an undoubted breach of the treaty, and is prior to the time when the breach by the non-surrender of the posts can be dated.
An act of South Carolina, March 26, 1784, suspends the recovery of British debts for nine months, and then allows them to be recovered in four yearly instalments.
This also was a plain contravention of the treaty, and dates before the breach by non-surrender of the posts.
Virginia, in June, 1784, resolved that her courts should be opened to British suits as soon as reparation should be made with regard to the negroes and posts, or otherwise as Congress should judge it indispensably necessary.
If her courts were before closed, which this resolution admits, it was in consequence of acts passed prior to the treaty, which her courts had deemed obligatory upon them after the treatyand it follows that there was a continual violation of the treaty from its ratification till 1787, when Virginia repealed all acts repugnant to the treaty.
Taking, therefore, the carrying away of the negroes to be a breach of treaty, 'tis a very moot point whether some of the laws of the States did not produce antecedent breaches.
Putting that out of the question and taking the definitive treaty, according to the construction just put upon it by our own conduct, as the act from which the execution was to date, and allowing reasonable time for the ratification to be notified and exchanged—it is certain that the first breaches were committed by us.
The use of these remarks is to show, that a candid and unprejudiced view of the subject tends to moderate the sanguine pretensions which have been built on the suggestion of the first breach having been committed by Great Britain, and to manifest the reasonableness of having stipulated compensation in the cases of the breaches made by us.
Indeed, admitting the first breaches by Great Britain, I do not see that it would affect the conclusion that compensation was to be made.
The following seems to be the fair view of the subject.
Mutual infractions of the treaty had taken place. Either our infractions were to be considered as the equivalents for those of Great Britain, and then having enjoyed the equivalents we had no right to ask reparation in addition—or, if we preferred reparation for the infractions by Great Britain, we were to renounce the equivalents for them.
Then it will follow, that the surrender of the posts on their side would draw with it a right of compensation for the losses suffered by impediments to the recovery of the debts on our side.
In other words, the treaty was to remain mutually broken and unexecuted in certain points, or it was to be reinstated by mutual performance. Performance as to the article of the debts is compensation for the losses sustained by impediments to the recovery, and the removal of those impediments.
In fine, it would, in my judgment, independent of the treaty, have been dishonorable and unjust in us to have interfered with the recovery of private debts—it was dishonorable and unjust to have interfered with them on the grounds which were the pretexts, and it is honorable and just to make compensation. The reputation of the country as well as its peace required the stipulation.
It is not perceived that there is any thing exceptionable in the mode of determining and adjusting the compensations to be made in the cases in which this may be deemed proper-or that any better mode could be substituted. The article appears in general sufficiently well guarded.
Article VII. This article appears to me as well arranged as could have been expected.
It is objected to as too dilatory, but no reasonable substitute has occurred.
The United States could not have demanded a gross sum, because they had no adequate standard by which to ascertain what was proper. They might have asked too much or too little.
Great Britain, for the same reasons, could not have been expected to agree to the demand of a gross sum. This is not the way that nations deal with each other, unless where one is in a situation to dictate to the other. This was not our situation.
Indemnification on equitable principles was all that could be expected. This necessarily supposes a mode of ascertaining with due investigation the real losses.
But one of three modes can well be thought of; to refer the adjustment to the tribunals of the United States—to refer it to the tribunals of Great Britain, or to submit it to referees mutually appointed.
Either of the first two modes was inadmissible, because liable to partiality. The tribunals of the United States could never get hold of these cases without inverting entirely the course of similar transactions. Those of Great Britain will now in many cases decide in the first instance, but no American would choose to leave the ultimate decision there. Referees have therefore a comprehensive power to do justice in all cases in which it could not be obtained in the ordinary course.
But, it is said, 'twere better commissioners should have decided in the first instance without reference to the courts for the greater despatch.
This might have had a contrary tendency to that of promoting dispatch. Appeals, in a great number of cases, will have gone forward; and it was better they should have had their course than to be arrested to be turned over to the referees. 'Tis probable, from the expedition of admiralty proceedings, that the courts will have done their part by the time the referees are ready to begin.
It is to be observed too, that this article follows closely the provision with regard to the debts; and it was material this should be the case.
We certainly must prefer that our courts of justice should have a free course in the affair of the debts, in all the cases in whch it is now practicable.
The latter clause of this article respects the prizes made within our territorial jurisdiction, or by privateers originally fitted out in our ports, is confined to the cases in which the prizes having been brought within our ports, we forbore to make restitution, and is purely in execution of the opinion of the President conveyed in the letter from Mr. Jefferson, which is annexed to the treaty, and which, by being annexed and referred to, becomes a part of this article.
Agreeing, then, with the laws of nations, with the obligations which our treaties with other nations impose upon us in respect to them, and carrying into effect the expectation previously given by the President, it is liable to no just objection.
Article VIII. This article seems in all respects unexceptionable.
Article IX. This article, from having been misunderstood, caused at first much uneasiness. It was considered as giving a permanent reciprocal right to the citizens of the two countries indefinitely to acquire and hold lands in either. But this is manifestly an error, which having been pointed out, the uneasiness has subsided.
It is expressly confined to those holding lands prior to the treaty, (the words are those* "who now hold lands,") and makes no alteration in the antecedent state of things which can be at all material in a national light.
It is not certain that it makes any other alteration than that those who now lawfully hold lands may convey those lands to aliens.
It may, however, give rise to this question, whether aliens who now hold lands by a defeasible title acquired since the treaty of peace, in States whose laws do not authorize it, are not protected in their acquisitions? But however this question may be decided, it is of little importance; for in fact the alien laws are never enforced, nor likely to be so; and the quantity upon
* Mr. King, who has critically examined these points, is of opinion that it does not apply to such cases.
of lands so holden, which are daily changing owners, is not con. sidered enough to have any consequence in a national scale.
An objection seems to have been raised in the Senate against the constitutionality of this article, as though it entrenched the authorities of the States.
But this objection is inadmissible. It would totally subvert the power of making treaties. There can hardly be made a treaty which does not make some alteration in the existing laws, which does not, as its objects, control the legislative authority; and from the nature of our Constitution, this must apply to the State laws and legislatures as well as to those of the Union.
A treaty cannot be made which alters the constitutions of the country, or which infringes any express exceptions to the power in the Constitution of the United States. But it is difficult to assign any other bounds to the power. It may certainly alter the provisions of the statute and municipal laws, and modify the rules of property.
There are stipulations in our treaty of peace with Great Britain, analogous to the one under consideration; the validity of which has never been disputed.
Of this kind is that which stipulates that all persons who have any interest in confiscated lands either by debts, marriage settlements or otherwise, shall meet with no lawful impediment in the prosecution of their just rights; and that which stipulates that there shall be no future confiscations.
But a much stronger case is found in the 11th article of our treaty of amity and commerce with France, which is generally understood and practised upon, as removing in toto, the disability of alienism from all Frenchmen, so far as respects acquiring and holding lands; and certainly gives them important rights with regard to lands which they would not have but for this treaty on account of their alienism.
Indeed, the protection of aliens in the enjoyment of the landed property they hold, is a familiar article in treaties of peace; so also stipulations as to rights in lands more or less qualified are common in treaties of commerce. And the power of making treaties is plenary under our present Constitution; more